The Least Bad Options For Guantanamo Bay

This is TALK OF THE NATION. I'm Neal Conan in Washington. U.S. officials acknowledge that nearly a quarter of the prisoners at Guantanamo Bay are on hunger strike. Defense lawyers say the strike includes nearly all the detainees. The International Committee of the Red Cross believes the cause can be traced to uncertainty.

Only a few of the 166 men held at Gitmo will face charges or trial. None have any idea if or when they will ever leave. U.S. officials believe some are too dangerous to release; others were cleared to go home to Yemen, but now that's on indefinite hold.

All three branches of government agree that this open-ended detention is justified under the rules of war. Others, though, argue that prisoners must be released unless they are charged, prosecuted and convicted. How do we balance conflicting interests at Guantanamo? What's the best of a bad set of choices? Give us a call, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Later in the program, the firing of Rutgers basketball coach Mike Rice, but first what's next at Guantanamo. We begin with Carol Rosenberg, a reporter for the Miami Herald, who has covered this story since the first detainee arrived in 2002. She joins us now from the Herald and member station WLRN. Good to have you on TALK OF THE NATION today.

CAROL ROSENBERG: Thank you for inviting me.

CONAN: And let's start with that hunger strike. When did it start? How many people are involved?

ROSENBERG: Well, both of those answers are a subject of debate. The military says it started about five, six weeks ago, and as of this morning 40 of the 166 detainees they considered to be hunger-strikers. Lawyers for the men say that it happened - it began about twice as long ago, it began in February, and they think that there's widespread adherence to the fasting that's going on down there. We don't...

CONAN: So almost everybody.

ROSENBERG: Yeah, they say - the latest report quoted one of the detainees as saying 130 or 166 men. It's hard to know, and it's hard to imagine that a single detainee would know because they're spread around seven different detention sites at Guantanamo.

CONAN: And how would anybody else know, other than the military?

ROSENBERG: Well, the people probably in the best position to know are the Red Cross, and they've been down there for more than a week. They've had a 12-, 13-member delegation down there, including a doctor they sent down early last week. But they're not saying. You know, the Red Cross, they have this policy of only talking to the host nation and not sort of publicizing their findings.

So it's good that they're down there, it's good that they're talking to both sides, but for us as consumers of information, it's not knowable from them.

CONAN: And what do we know about the causes of this? We've heard various attorneys say it's because of the way cells are searched these days, it's a way - it's about the way Qurans are handled by U.S. soldiers. It's the - the ICRC says it's about uncertainty.

ROSENBERG: Well, I think all sides agree that the underlying explanation for this is frustration, that more than 80 of the men there were designated for release four years, three and a half years ago by a federal U.S. task force that had intelligence agencies, Justice Department, State Department input on which of the 166 men need not be there and should be moved on to the next phases of their lives.

So that's sort of an agreement. You hear that from the military; you hear that from the lawyer. And the Red Cross agreed the uncertainty of the future is a problem. But the lawyers for these men say the spark for this was in February, a quite aggressive search in the communal camp, which is called Camp Six, which is the showcase camp where people lived in cells, but the doors were opened, and shared cellblocks and prayed together and ate together and had acquired quite a lot of acquisitions: books, blankets.

Some of them wore wristwatches, and two years ago I was told this was, you know, a perk of life in the communal camp. And earlier this year, a new set of guards came in and conducted a search. The military says it was business as usual. The detainees say through their lawyers that they lost privileges that they'd had before. And they say - and the military is very sensitive to this - the detainees say that they mishandled the Quran in these searches, that they had a practice of only allowing a Muslim linguist to look at a Quran right in front of the owner, the prisoner whose Quran it was, and that in this instance in this communal camp they were collected up and handled in a different way that was offensive to the detainees.

The lawyers call it desecration, but the military says very clearly no soldier, no non-Muslim ever touched the Quran. They may have been put in boxes that were moved around by soldiers, but the only person who searched them was a Muslim translator who works for the Pentagon.

CONAN: And this is a pattern. You have people who rotate in and out, of course we're talking soldiers not prisoners, and so a new set of guards every, what, 18 months or so.

ROSENBERG: It can go six, nine, 12 months. Eighteen months would be very long for a guard to be there. And they come and they go. They are a combination of reservists and active duty. And what happened this year or towards - starting over the past summer is in this communal camp, the showcase camp, the camp where people kind of got along, guards on one side, detainees on the other, each keeping an eye on each other but as little contact so as little friction as possible, that had been sailors guarding it. And it switched over to MPs, to soldiers.

Now again, the military says this is just nonsense, that one guard is the same as another guard, they all have the same rules, they all have the same instructions, and they all have the same supervision. But from my viewpoint, having gone back and forth for the past 11 years, I was there in Ramadan in August, and the guard force, which was primarily sailors, they had a lot of confidence in their understanding of the relationship through the glass.

They felt that they could keep an eye on these people and that they would allow them to acquire some of these perks. And then the soldiers came in, and we know that there's been problems since January, starting with an episode in the communal camp, the camp where everyone's supposed to get along, where a guard in a tower shot rubber pellets into the three-quarter-of-a-million-dollar recreation yard they built to keep the two sides apart.

The military thought this was just business as usual, firing, you know, rubber pellets, something we had never heard of in Camp Six. We'd only heard of maybe once in the history of Guantanamo. And they thought it was business as usual because they followed their standard operating procedures.

But they didn't tell us about it for two months. So there has been increasing tension in this camp building up to the acknowledgement three weeks ago by the military that there's a hunger strike there, that two - go ahead.

CONAN: No, I was going to say, you've described conditions at Camp Six, and that's the communal camp. What are the other camps like?

ROSENBERG: Well, Camp Five, which is filling up, is the maximum security camp. These are prisons. They're hard, cement, steel prisons. And Camp Five is one detainee to a cell. The door is locked, and if he wants to go to the recreation yard, he's shackled up and taken by a guard on each side, in shackles, to kind of a cage that's the recreation yard, and put in there where he can commune with other maximum security prisoners, and he gets moved back and forth in these shackles.

The success story of Camp Six, and now the challenge of Camp Six, is that they came and went from the recreation yards on their own. They didn't need a guard moving them. They could come; they could go. They were in an enclosed area. They had their picnic tables. They had their cells open. They had 22 hours access to the outdoors.

The guards had, and the commanders had, locking mechanisms so they could close them into their cells. If they ordered everyone into the cells, and they closed the doors, they could go into the cellblocks and conduct searches. If they ordered everybody into the recreation yards, they could close the cellblock and search their cells.

Well, what's been going on since this strike began is the detainees used empty cereal boxes to cover up the cameras inside their individual cells. So the ability of the prison to look in each individual cell and see how everybody is doing is diminished. They're partially blind down there. I discovered this when I was going through the camp, wrote a story about it about two weeks ago.

CONAN: Now that's...

ROSENBERG: And this is the challenge, and this is the danger. They know that there's hunger-strikers, they know that there's people rejecting food meal after meal after meal, and they don't have eyes on them to figure out who needs to be removed and who needs to be force-fed or get these tube feedings up their nose.

CONAN: And there are some, even the military acknowledges some group of about a dozen or so who are being force-fed.

ROSENBERG: They say that they've got 11 getting tube feedings, and they say it's not force-feeding because they agreed to go along and sit in a chair and let - and passively sit there while the tube goes up the nose and down the back of the throat into the stomach.

The lawyers and advocates for the detainees say if they were allowed, some of these men would starve to death if they were given a choice. But it's part of a choreography that's developed at Gitmo for years. Someone knows if they miss so many meals, and they present themselves as a hunger-striker, they will get fed, and they will get re-nourished.

The concern now, the challenge now like never before is who are the people who aren't presenting themselves, who aren't really visible from the guards on the other side, who may be wasting away? They call them stealth hunger-strikers. They're the people who may be making a statement that the guards can't see.

CONAN: You've described Camp Five and Camp Six. There's also Camp Seven.

ROSENBERG: There is Camp Seven, and Camp Seven contains 16 men who were held by the CIA and brought into Gitmo in 2006, and it's a secret camp. I've been going there for 11 years, and they call, you know, the detention center safe, humane, legal and transparent. Well, there's no transparency for Camp Seven. No reporter has ever been allowed to see it. They won't even tell me how much they paid for it or what contractor built it.

And when they tell us that 40 of the captives are on hunger strikes, they're talking about 40 of 150 captives. They won't talk about those 16 men. The former CIA prisoners don't fit into their calculus. I'm told through my sources that the CIA captives are eating. Those are the men who are awaiting - six of them are awaiting trial on death penalty cases, five for the 9/11 attacks and one for allegedly organizing the bombing of the USS Cole in 2000.

But we have no visibility on that camp. And there is no comment on whether or not they're hunger-strikers. Independently from my sources I understand those guys are eating. They're preparing for hearings, pretrial hearings that are coming up at Gitmo in the next couple weeks.

CONAN: We are talking with Carol Rosenberg, a reporter for the Miami Herald. She's covered the arrival of prisoners and their departure since the first one arrived more than 11 years ago. She's joining us from member station WLRN and the Miami Herald. When we come back after a short break, we're going to be joined by Jennifer Daskal, a former - an adjunct professor at Georgetown Law, formerly a counsel to the assistant attorney general for national security at the Justice Department and author of a recent op-ed in the New York Times saying don't close Guantanamo. That represents a change of opinion.

If you should call and tell us - how should we balance the conflicting interests at Guantanamo? What's the best of a bad set of choices? 800-989-8255. Email us, talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

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CONAN: This is TALK OF THE NATION from NPR News. I'm Neal Conan. The prison at Guantanamo Bay opened 11 years ago, in 2002. At its peak it housed about 660 detainees. Some serve elsewhere now. Others have been resettled. Some are free. Nine died in the camps. The most recent known arrival was Muhammad Rahim al Afghani in 2008. The most recent departure: Yemeni Adnan Latif, found dead in his cell last year. According to pathologists, he committed suicide.

These days the 166 men who remain come from 23 countries. The U.S. military admits nearly a quarter of them are now on hunger strike in what the Red Cross believes is a protest of the uncertainty of their detainment. How do we balance conflicting interests at Guantanamo? What's the least bad way to handle this situation? 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Carol Rosenberg, reporter for the Miami Herald, is our guest. Joining us now, Jennifer Daskal. In 2010, she was criticized for taking up the cause of terrorists when, as a Justice Department attorney, she advocated for the closure of the detention center at Guantanamo. Today, Jennifer Daskal is a fellow and an adjunct professor at Georgetown University Law School, and she's changed her mind. She joins us here in Studio 3A. Nice to have you with us today.

JENNIFER DASKAL: Thank you for having me.

CONAN: So Guantanamo should remain open for now, you say. Why?

DASKAL: So I wrote this op-ed to talk about the political reality that we're facing. We now have a situation where there was a new administration that came in that reviewed the detainees' files and determined that some core set of detainees, 46 to be precise, were too dangerous to be released or transferred and not eligible for prosecution.

And my argument was simply that the bumper sticker, close Guantanamo, doesn't address that key situation. And at the time when people were talking about closing Guantanamo, what that meant to most people was moving this core set of detainees somewhere else, out of the more lenient camp that Carol Rosenberg just described, where their living situations were relatively good for detainees, as compared to any situation that they would face elsewhere.

And what I argued in that piece and what I continue to believe is that we need to move the discussion beyond the bumper sticker of close Guantanamo and talk about the underlying issues. When does this conflict end that provides a legal basis for this detention? And at what point are these detentions no longer legally viable?

CONAN: The conditions, you say, if Guantanamo is closed, and those 47 men, presumably the others would either be tried and convicted, or that other group that Carol Rosenberg was describing, Yemenis mostly, would be eventually returned home, the foreign minister - that's a whole - stuff going on, but anyway eventually would be returned home, but that's on hold at least for the moment. But this core group, the conditions you say for them would be worse in the United States.

DASKAL: I believe so. I believe that most observers, most commentators, have suggested, and I think this is probably right, that if these detainees were moved to the United States, they would be housed in maximum security prisons akin to super-maxes, in situations where they wouldn't have the opportunities for communal living, communal recreation, communal pray that they, at least for the last several years, have had in Camp Six in Guantanamo.

CONAN: Yet some people say the situation of these men, if they were transferred to the United States, the precedent is already set. The United States is holding people without charge indefinitely. It is now in a situation where they're doing that in this legal limbo of Guantanamo Bay. What changes if they're brought to the United States?

DASKAL: I don't think a whole bunch changes because we've already had the Supreme Court state that the due process clause allows the detention pursuant to the law or even of a U.S. citizen, this was Mr. Hamdi, whose case was adjudicated by the Supreme Court several years ago.

And so if moving the detainees at Guantanamo provides them an opportunity to raise due process claims, I'm not sure anything changes so long as the United States deems itself in an ongoing armed conflict. And this is the key point of my piece, is that we need to move the discussion and the debate to start talking about when does this conflict end.

In 2014, the U.S. will withdraw combat forces from Afghanistan, and that provides an opportunity to think about the potential end to this conflict that will have raged for over 12, almost 13 years at that point.

CONAN: Get to callers in just a second, but Carol Rosenberg, I wanted to ask you: Is, at least amongst the lawyers, the people you talk to at Guantanamo, the people familiar with this, is there any end in sight?

ROSENBERG: No. I mean there is no end in sight, and the underlying reason for many of these men is politics. Part of it is at the lap of Congress, which has put such rigid restrictions that the people who the CIA, the DIA, the FBI, the Department of Justice, all agree should not be there, cannot be moved out. And part of the political problem is for sure Yemen because nobody trusts Yemen to keep an eye on people who we've held for so long even if they were potentially innocent in the first place have to be pretty angry at us after 12 years.

So you can't just let them go into a place like Yemen. So - and the president put a restriction on repatriations to Yemen after the underwear bomber, after we realized that it's such an unstable place. But that doesn't mean that there can't be repatriations, and that doesn't mean there can't be resettlements.

What's happened is it's come to a complete halt. There's no longer someone trying to negotiate country by country for individual instances of people to get out and get a new start at life. That office has been closed. And frankly we learned from the WikiLeaks cables that Europe's willingness to help us out of this problem has dried up when we made it clear we weren't willing to help ourselves out of the problem.

I just wanted to make one point about if there were Guantanamo in the United States. It is not clear that it would be military operation with people rotating every six, 12 months. I'm not advocating a change, but it would look different. It would probably look like maximum security confinement for some of them, but almost half of them are in maximum security confinement now.

Camp Seven, the ex-CIA prisoners' camp, is described as a super-max in the Wallace Report. We haven't seen it; we don't know. But the military describes it as super-max. And then the other thing is that the structure is such that the federal courts are being told by the Justice Department in filings right now that you can't even investigate the quality of water down there because you have no right to check on the detention - you have no oversight on military detention at Guantanamo.

I don't know; Jen's the lawyer. It is possible that if there was a challenge to whether or not they were getting clean water in Illinois, a federal judge would have more authority, more jurisdiction, or the Justice Department would be more willing to let him hold a hearing and figure it out and offer a remedy.

CONAN: Let's get some callers in on the conversation, 800-989-8255. Email talk@npr.org. We'll start with Ed(ph), who's calling from San Francisco.

ED: Hi Neal, I (unintelligible) audience, by the way, to write NPR to keep your show. It's one of the best shows on talk radio.

CONAN: Well, thank you.

ED: OK, the fact is, you know, this is a very shameful mark in the American history. Those are trophies. You know, a lot of these so-called terrorists are loose-knit bunch of idiots who have caused more harm to their people, Arabs and Muslims, than they did to anybody else. But they've been held there just as trophies so the American people see these terrorists. It is part of the bogus war on terrorism.

What we should do with them is try them. Try them in the United States and find out who is, you know, did what, and sentence to prison, to death, to other countries. But don't keep the trophies going on forever to scare the American people and to take away their civil liberties, take away their saving account, destroy their registered property, homes and whatever.

This is a game, and I'm really ashamed of Obama to play the same games that George W. Bush started. The war on terror is a fraud, is bogus. And that second guest on your show should be ashamed of herself for changing her opinion. We need American people to wake up. Who is the real terrorist in this country? Not these poor, pathetic people who most of them have been caught in the wrong place at the wrong time. Thank you very much, Neal.

CONAN: Ed, thanks very much for the call, and Jennifer Daskal, I'm not sure you feel ashamed of yourself, but in any case, can most of these people be tried?

DASKAL: So that's the key problem, and I think that's one of the key lessons from Guantanamo. And to its credit, the Obama administration has publicly committed not to send any new detainees to Guantanamo, and to the extent that the United States has taken custody of international terrorists overseas, it has brought them to federal court for trial, which is the way forward, the appropriate way forward.

CONAN: Osama bin Laden's son-in-law now facing trial in New York.

DASKAL: Exactly, among others. And the problem with Guantanamo is - there's two problems. One is the initial determination to bring these men to Guantanamo in the first place. We're left with this terrible legacy decision and a group of American public and politicians who are quite risk-adverse about the dangers of releasing somebody or transferring somebody who might someday go out and do the United States harm.

And that's a real problem, this risk adversity that our nation and our politicians embody. But there's a real problem with prosecuting these guys. First, federal courts, most of - for the vast majority of the detainees, the most obvious charge, if the evidence had been collected, will probably be something along the lines of material support for terrorism. Prior to the Patriot Act, which was passed after 9/11, material support for terrorism did not in key aspects have extraterritorial application.

The military commissions that are proceeding in Guantanamo have just been dealt a pretty important blow in that the D.C. circuit ruled that material support for terrorism and conspiracy are not viable charges for a military commission, for the prosecuting acts that took place prior to 2006 when the Military Commission Act was enacted. And as a result, the possibility of trying even a small number of detainees that were deemed eligible for military commission trial has been reduced even further.

So it's a terrible situation and a terrible legacy problem. And I think opening Guantanamo was a mistake. Bringing the detainees to Guantanamo was a mistake. And it's a hard problem to solve. My point is simply that the bumper sticker of closing Guantanamo doesn't solve the problem of the 46. In the meantime, absolutely, efforts should be made at the highest levels to begin the repatriation or resettlement, the transfer of the almost 90 detainees who have been either cleared for transfer or conditionally cleared for transfer.

CONAN: Let's get another caller in, and this is Toni. Toni with us from Como in North Carolina.

TONI: Hi. I think that Guantanamo should remain open and that the detainees should be tried and convicted and executed, because they are military detainees. This is a time of war, and we cannot bring them into the United States to cause more terrorist acts in this country, similar to what they have been found at least suspicious of in other countries. We don't need that here. We have enough here. We don't need to put them in our civil program because they're not part of that, they're not part of that - military - we just need to keep them within the military framework.

We don't need to have them within the civilian framework of the law. I mean we're at war. They're military prisoners. We need to keep Guantanamo open for those types of prisoners and not make them a part of the federal prison system within the United States.

CONAN: Well, which gets back to your point, Jennifer Daskal, at what point - and thank you very much for the call, Toni. At what point does the war end and those conditions no longer apply? U.S. combat forces leave Afghanistan at the end of 2014. Obviously some American forces - at least the plan is - will stay on to train and probably conduct counterterrorism operations as well. But at what point is the global war on terror - the administration doesn't talk in that terminology anymore - at what point is it over?

DASKAL: And to be clear, the administration has disavowed the notion of a global war on terror. It deems itself in a conflict with al-Qaida, the Taliban and associated forces. But it's important to note that just last month there was the intelligence threat assessment produced by the U.S. government, by the director of National Intelligence, and it talked about core al-Qaida being significantly degraded. And it went through the various other associates and affiliates of al-Qaida, and of the several, the only entity that was described as having effectively the capability and the intent to engage in external attacks focused on the United States was al-Qaida in the Arabian Peninsula, which is a group that's mainly localized in Yemen.

So it raises, I think - it provides an opening for a real discussion and a real debate about whether the current notion of a conflict with al-Qaida and its various associates still make sense 12 years later.

CONAN: Jennifer Daskal, adjunct professor at Georgetown Law, where she's also a fellow. Carol Rosenberg also with us, a reporter for The Miami Herald. You're listening to TALK OF THE NATION from NPR News. Charles is on the line from Norwich in Connecticut.

CHARLES: Thank you for taking my call, and I'm going to miss listening to you on the radio, sir.

CONAN: Thank you.

CHARLES: A couple of things. One, as a retired Navy, I did 30 years - I started out as a cook and I ended up as a master-at-arms. We're trained differently to guard prisoners generally because we always 90 percent of the time are doing it very close quarters on ships. We always have a problem with our Marine brothers when we share duties because they come from a different mindset than we do. (Unintelligible) you're here. I'm here. We've got to get along. It causes less trouble, and you get what little privileges you have.

The second thing is, we - we as a country have sold our souls out of fear. First, it was anger, now it's fear, and we need to say, listen, guys, we are part - we're creating more terrors for every one of these guys that's been said is not a danger, was picked up wrongly. We're creating - their sons, their nephews, their nieces will be coming at us. If we don't say, listen, we screwed up here. We're sorry. Let's sit down and talk this over and do whatever because we're creating thousands of terrorists doing this, because they see this.

I have no doubt that somebody got mad at somebody in an army and said did something wrong, said the wrong word, the fact, it has to be - when you see sailors leaving and there's been no real problem and then the Army coming in, that tells you something because they use a different mindset than sailors.

CONAN: I understand, but I think it's a standard rotation. But Carol Rosenberg, as you think about what Charles has been saying, do we know the quality of evidence against the 166 there?

ROSENBERG: Well, that's what I wanted to get back to. You know, when people talk about closing Guantanamo at the very beginning of the administration, I think the assumption was we'll put them all in trial. We will find those that are guilty with evidence guilty. They will be punished, depending on what people want the ultimate punishment to be. And those that are innocent we will let go. We might try to find a reasonable resettlement option for them, understanding that you have to rehabilitate them whether they were innocent or not because they were held in these austere prison-like conditions. But what we found out was when the administration went and started sorting through the files, that they came up with 48 who are now 46 men who they said we can never convict of a crime and we can never let go.

And so they created this third concept that the Bush administration had already bought into, which is kind of like POWs forever in a forever war. They said 48 men can't be convicted in any kind of a court that we, the American people, recognize as justice. But we can't release them in that other form of justice that we, the American people, have, which says let them go if you can't convict them.

CONAN: Carol Rosenberg, a reporter for the Miami Herald, with us from a studio shared by the Miami Herald and our member station WLRN, in Miami. Jennifer Daskal joined us here in Studio 3A. Thank you for your time today.

DASKAL: Thank you very much.

CONAN: There's a link to her op-ed in The New York Times at our website. Go to npr.org, click on TALK OF THE NATION. Transcript provided by NPR, Copyright NPR.